What’s in Your Wallet? Who Cares—What’s in Your Cell Phone Is More Important!

July 31, 2014 – Articles

D. Michael Crites, Barbara J. Jordan

Share This Page

The United States Supreme Court has tackled the issue of cell phone privacy and ruled that data is different from other forms of technology. In late June, the Supreme Court issued an opinion: those of David Riley, a California man whose smartphone police officers searched, and Brima Wurie, a Massachusetts man who was carrying an older “flip phone” when he was arrested.2 The Riley and Wurie cases presented a straightforward, common question: “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”3 In Riley, police stopped the defendant for driving with an expired registration and discovered that his license had been suspended.4 After arresting Riley and impounding his vehicle at the police station, loaded firearms were discovered during a routine inventory search of Riley’s car. The police used this discovery as motivation to rummage through the defendant’s cell phone data, where they found photos and videos potentially linking him to gang activity, including a shooting for which he was later charged. In Wurie, the defendant was arrested on suspicion of selling drugs. At the police station, two cell phones were seized from Wurie. One of the phones, an antiquated “flip phone,” received repeated calls from a number identified as “my house.” After accessing the call history and phone directory, the police were able to identify the caller’s phone number and address. The address did, in fact, turn out to be Wurie’s house, from which they seized illegal drugs, a firearm, and cash attributed to the defendant. In neither case did police obtain a warrant before searching the phones.

Warrantless Searches Are Permitted in Some Instances.

Generally, the Fourth Amendment requires police to first obtain a warrant before searching a person or their belongings. However, there are several instances where warrants are not required. In 1973, the Supreme Court held that police officers did not need a warrant to look inside objects found on someone’s person during arrest if the object had unidentified contents, such as a pack of cigarettes, a wallet, or a purse that might contain a weapon.5 Warrantless searches can also be imposed upon the contents of a vehicle when its driver is being arrested, on students when they desire to engage in sports, band, chorus, or academic competitions, and on students and their belongings when on public school grounds if there is “reasonable suspicion” that the student has violated the law or a school rule. These kinds of warrantless searches are permitted to protect the public and police officers from physical harm and to prevent the destruction of evidence.

Digital Is Different.

According to the Supreme Court, the “digital data stored on cell phones does not present either [a] risk” of imminent physical danger or evidence destruction.6 Since the data on a cell phone cannot itself be used as a weapon and the extent to which the cell phone data could possibly warn officers of impending physical danger to themselves or the public is limited, searching the cell phone data under the guise of officer safety was not a concept that the Court wanted to embrace. Further, there are several simple and cost savvy ways for officers to protect against the destruction of digital evidence that may be stored in a cell phone.

When conducting any search, the counterbalancing consideration to protection and enforcement of the law is the level of intrusion that searching a person or their belongings imposes. The “degree to which [searching a person or their objects] intrudes upon an individual’s privacy” must be reasonable in light of “the degree to which [the search] is needed for the promotion of legitimate governmental interests.”7 In their June 25, 2014 opinion, all nine Justices joined forces to deem police searches of cell phone data overly intrusive. Per the Court, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”8 “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person,” Chief Justice Roberts writes for the Court.9 “Notably, modern cell phones have an immense storage capacity.”10 Cell phones like Riley’s and Wurie’s “are based on technology nearly inconceivable just a few decades ago,” when the Court issued its 1973 opinion permitting warrantless searches of arrestees.11 In sum, digital is different.

The Court notes, however, that police can still rely on the exigency exception to the Fourth Amendment to search digital data on cell phones without a warrant.12 An exigent circumstance would be akin to disarming a ticking time bomb or locating an abducted child. Absent these extremely rare circumstances, the officer must secure a warrant to search the phone’s contents. And, of course, “law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.” Furthermore, in order to prevent data wiping or encryption, the Court instructs law enforcement officers to simply turn off the phone, remove its battery, or place it in a cheap “sandwich bag made of aluminum foil.”14

The Future of Digital Privacy.

This opinion sheds new light on the extent to which digital is different—not only for law enforcement but also for private employers and other government actors, as well. The legality of bulk metadata collection is already becoming a hotly debated topic.15 “Federal trial courts are split on whether collection of otherwise unprotected metadata in relatively large—or, in the words of one district judge, ‘breathtaking’—amounts to a violation of the Fourth Amendment.”16 In recent years, lower courts across the country have struggled with the issue of how closely to conform the Fourth Amendment’s existing rules in cases involving new technologies.17 In Riley, the California Supreme Court applied existing case law precedent supporting warrantless searches according to its broad terms—and was reversed. When it comes to new technologies, lower courts should not quickly follow broad statements from pre-digital opinions. “Rather, in the special context of new technologies and the Fourth Amendment, lower courts may now feel free to read Supreme Court precedents narrowly. The result will likely be additional circuit splits warranting the Court’s attention.”18

Clarity on these issues is not likely to come from the Court quickly. The Court previously declined to hear an appeal by Google to a lower court’s findings that Google’s collection of unencrypted passwords and other personal data from home WiFi networks could be a digital invasion of privacy.19 The case later settled before being fully litigated, further compounding the Courts unwillingness to clarify the messy word of digital data.20 Therefore, implications abound for businesses amassing internet data to analyze and formulate marketing campaigns. The recent revelations that Facebook allowed researchers to intentionally manipulate users’ news feeds for the benefit of a psychological experiment has increased concerns about the methods private corporations use to mine, store and manipulate private electronic data.21 Employers searching their employees’ company-issued computers or cell phones should be cautioned, as well. The presence of “cloud computing” or the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself only complicates the bounds of a permissible search. Company-owned devices may permit employers to access their employee’s privately-stored information, even without knowing it. Access to vast amounts of data without first obtaining a warrant or the permission of the owner is the very can of worms the Court did not want to open.